Beneath the Surface Lies a Slippery Slope

After a discussion last evening with friend and fellow blogger John about whether it would ever be acceptable to place certain limitations on 1st Amendment freedom of speech, and if so, under what circumstances. Now, it’s been a lot of years since my last ConLaw class, so I had to dig out some notes and texts, but let us review briefly, the history of free speech in the U.S..

The U.S. Constitution was signed and ratified in 1787, but the first ten amendments, commonly known as the Bill of Rights, was not ratified until 1791. The first real curtailment of free speech came some seven years later, with the Sedition Act of 1798. At the time, war with France seemed imminent, Congress and President John Adams feared treason by French sympathisers within the U.S., thus was born the Sedition Act of 1798, which required criminal penalties for persons who said or published anything “false, scandalous, or malicious” against the federal government, Congress or the president. The law expired three years later, but not before 25 citizens were arrested, including a Congressman who was convicted and imprisoned for calling President Adams a man who had “a continual grasp for power.” Think about this for a minute, folks. Would not every single person reading this today be in jail, for we have all said much worse than that about our current Idiot-in-Chief!

Then in 1917, Congress passed the Federal Espionage Act prohibiting false statements intending to interfere with the military forces of the country or to promote the success of its enemies. Do you begin to see where that could come under a variety of interpretations? And then in 1918, the law was expanded to prohibit any statements expressing disrespect for the U.S. government, the Constitution, the flag, or army and navy uniforms. Think Colin Kaepernick and the NFL?

The first challenge to the law brought about the Supreme Court’s first case in free speech in the case of Schenck v. United States, Justice Oliver Wendell Holmes wrote the opinion of the unanimous Court, which sided with the government. Justice Holmes held that Mr. Schenck was not covered by the First Amendment since freedom of speech was not an absolute right. There were times, Holmes wrote, when the government could legally restrict speech. Though it is a fascinating case, I won’t bore you with it here, for it is not what this post is about, but rather I use it only to lay a foundation.

Now, why did this come up now? Because of this headline in the New York Times:

US Votes Against Resolution Condemning Nazi Glorification

Well, that sounds rather like the U.S. is planning to encourage Nazism, doesn’t it? Sounds rather like the work of Bannon/Spence/Trump, eh? The story, a short Associated Press piece, does little more to enlighten the reader, but there is more if one scratches a bit beneath the surface.

First of all, though the U.S. and Ukraine are the only two nations to vote directly against the resolution, there are 51 nations that abstained from voting. Second, while I would love to blame Trump and come down hard, the fact is that this is an annual resolution that the U.S. has voted against since at least 2012, so it is really nothing new.

And lastly, perhaps most importantly, the primary reason we cannot support this resolution is the resolution calls on all UN member nations to ban pro-Nazi speech and organizations and to implement other restrictions on speech and assembly. Now do you see the problem? But this, still isn’t quite the point of this post. Yes, yes … bide your time, friends, for I am old and slow, but I am coming to the point.

Some in the media, notably Britain’s The Independent and our own Newsweek, have attempted to link the decision not to vote yea on the U.N. resolution to Trump’s failure to condemn Nazism after the deadly Charlottesville rally in August. Perhaps, who knows? But it doesn’t matter, for either way, we cannot afford at this time to open that potentially wide door to banning any part of free speech.

It is what’s known as a slippery slope, and you’ve heard me refer to it before. A slippery slope is an idea or course of action which has the potential to lead to something unacceptable, wrong, or disastrous. Now, think back to the Sedition Act of 1798 for a minute. You could get into big trouble for saying or writing anything “false, scandalous, or malicious” against the federal government, Congress or the president. Now, think how thin-skinned the person occupying the White House is. Think how he threatened to use libel laws to stifle the press for saying ‘mean and untrue’ things about him. Think how he defines “truth”. Think about this statement: “Trump has no conscience, is not very intelligent, wears a bad toupee and has ugly rolls of flab.” I just made up that statement, but under the Sedition Act of 1798, I could spend up to ten years in jail for publishing that statement on this blog.

Now, we are not talking about a Sedition Act, but simply about banning Nazi speech. Believe me, I dislike Richard Spencer and all the neo-Nazi thugs as much as anyone but … if we take away their rights to voice their opinions, we leave the door wide open for other constraints on free speech, such as insulting the president or a member of Congress. Where is the line drawn, and more importantly, who draws that line? Congress? So far, they have proven willing to lick Trump’s boots and play nice with him, for the most part. An executive order?

I am not being an alarmist, so much as a cautionary. I do not trust Donald Trump. He is a sociopathic narcissist who will stop at nothing to further his own desires, to further bloat his already massive ego. And he cares not one whit for this nation nor its citizens. So, given half an opportunity, would he institute laws making it illegal to insult him? Absolutely. If we agreed to the U.N. resolution, it would crack open that door, and before you can bat an eye, he would have it open wide. I, for one, am not quite ready to give up my rights to free speech, and while yes, I would like to see curtailments on hate speech, this may not be the right time. Meanwhile, we can and must punish anybody who takes Nazism a single step beyond speech and into action.

When we see a headline, hear an idea or opinion, it always pays to do a bit of digging, for often what we see and hear is but the surface, and the truth lies beneath the surface.

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58 thoughts on “Beneath the Surface Lies a Slippery Slope”

Was it Oliver Wendell Holmes who wrote that the First Amendment didn’t extend to shouting “Fire!” in a crowded theater? Or–well, maybe it was some other jurist. Anyway, the implication there–and I do think it makes sense–is that freedom of speech isn’t absolute. Where we draw that line is the question.

Simple in theory, not necessarily in practice. Do fascists promoting hate hurt people? Not necessarily in the moment, but in the long term, I’d say they do. I can argue both sides of the question you raise, passionately. I guess all I’m saying is that it’s complicated.

It depends on who does the drawing. Left to people with self-interest, such as politicians, then no. In fact, I’m not certain, given human nature, that it could be, and that is the slippery slope I have referred to. Who decides what is hurtful? Who, in fact, decides who are innocent people? Who decides how many people must be hurt? I mean, if one person claims something hurt him/her, is that enough to make it illegal? A real-life example: Christians claim that they are hurt by having to perform services such as baking a wedding cake for a gay couple, for homosexuality is against their believe, their religion, but the gay couple are hurt by being discriminated against. Sadly, while we crave simple answers, there are none once human nature and greed step in.

This has been a very long discussion. I wasn’t going to add anything else but some fundamental points are raised here. One: human nature. What is that? Is it a tool? If it is, are people misusing it due to ignorance of its uses? Is it a condition of being people which is in some definite process of being improved? Or, are people “human nature” and that’s just the way it is, in which case this entire discussion is pointless? I don’t know how else to put this, but the more of the discussions on “free speech” I read, the more confused I get. Is that the point, to create confusion so we don’t have to face the music and arrive at a solid conclusion on the matter?
I said earlier that free speech should stop where it starts to cause hurt to the innocent. Predictably there is only more confusion: who decides what for whom? With examples, such as the gay couple and the Christians and their wedding cake. A very good example, in fact, of how easily the problem is resolved. “Rights” are only “rights” when they are opposed by counter “rights.” The problem is actually “rights.” Rights equal force. Force only works when you have some sort of superior force, some powerful and consistent backing that ensures you can always enforce your rights on those who oppose you. From that point on, nothing can ever work to bring forth justice. As the political landscape shifts so will the force relied upon to maintain certain rights.
A society, riddled with “rights” will eventually collapse in the violence of racism, homophobism, misogynism, whatever ism, since “rights” granted any minority or weaker group will always be seen by the opposite group as having been taken from them. What is needed is understanding, and to achieve that we need to face the music: only a compassionate approach to all of it can solve this problem. That isn’t something you can legislate, so for the “compassionate-by-choice” individual, that choice bears a price. Depending on the society that price can be extreme. Enter the hero and the heroine. Someone with true grit and a vision. If human nature needs fixing, or improving, boosting it with compassion is the way to go because compassion is the one thing that is too big to fail. It is incorruptible. Could that be why it is never offered as a viable alternative to legislation and enforcement?

It has, indeed, been a long discussion, but definitely an interesting one. You make many thought-provoking points and I am pondering turning this discussion into the foundation for a future post. Perhaps the most thought-provoking is “what is human nature?” I use the term often and perhaps lightly, without real thought. Usually, I think of it as the greed factor, the flaw in our character that keeps us from being completely compassionate, altruistic, kind and humane. I will think on this some more, for there is much of value here … not that we will solve the problems of the world, but perhaps only to better understand those problems. Thank you, Sha’Tara, for making me think!

Excellent point! I’m not sure who it was, but yes, it is a very good example. And as another reader commented something his dad always said, “Your rights end at my nose”. I somehow doubt that we will ever find just the right balance, but as long as we keep trying. The sad thing is that we have to legislate this at all. It should, it seems to me, just be a part of us all trying to live together in peace on this planet, but … sigh.

This is a thought provoking post and I am certainly an advocate of free speech. Censorship is not new in the country; most of my favorite novels were once banned. My concern is with media consolidation and the presence of a propaganda outlet that actively works to subvert our system of government. How does an open society protect itself from enemies who use our freedoms to destroy us?

Being from The Netherlands and now living in Germany I watched Neo-Nazi’s and similar minded groups increase over the years and it worries me enormously. We also have to worry about Erdogan from Turkey, although she didn’t win this time…Mrs Le Pen in France, trouble waiting to rise. And Trump playing his dangerous games with North-Korea…
Is seems all we can do is keep spreading facts, keep informing people, so nobody can’t say again ‘we didn’t know’.
Marvelous post! Thought provoking in a good way.
Kind regards,
Patty

Many thanks! And welcome!!! Yes, the major purpose of this blog, though it did not start out so, is to shine a light in the dark corners, keep people informed, and try to put forth common sense ideas into the madness that seems to be running rampant in the world today. Again, thanks, and I hope you will visit again soon!

Jeez, Jill. Since you started shining a light in dark corners I’ve had to vacuum my cobwebs twice already… I hate vacuuming!!! (that is one “c” and two “u’s” right?) Just kidding…:-) It’s been a good exchange. You may be tough, but you’re fair minded. And that is a compliment, not a complaint, of the season.

Many thanks, Sha’Tara … that is indeed high praise and I appreciate it! And I hear you about the cobwebs and vacuuming both (yeah, you spelled it right)! I spend so much time on this blog that I try not to even look up at the ceiling for fear I will find it is all one gigantic web! 😉

My pleasure. That is a great initiative and I will add you to my list. Trying to connect with and reach out to my neighbors is however time-consuming, so it might take a while before I visit again 😉
XxX

Reblogged this on Opher's World and commented:
Trump worries the hell out of me. I think he is a narcissistic psychopath. He thrives on causing upset, hatred and division. He deliberately sets out to do it. He thinks it puts everyone on their back foot.
Free speech – one each.
Yes I want to hear what everyone has to say and I think they should be free to say it – apart from inciting hate or violence.

Trump worries the hell out of me. I think he is a narcissistic psychopath. He thrives on causing upset, hatred and division. He deliberately sets out to do it. He thinks it puts everyone on their back foot.
Free speech – one each.
Yes I want to hear what everyone has to say and I think they should be free to say it – apart from inciting hate or violence.

Well researched, and I’d say, legally and psychologically brought to a correct conclusion. However, and there’s always an “however” it doesn’t end there. Your reasoned argument for free speech is your own Achilles’ heel; the reason why “they” will win. Oh yes, they will win. Nest year, in ten years, doesn’t matter. You see, as history well shows, “they” don’t play by the rules they force “you” to live by, through honour or shame or guilt or intimidation and fear, and fear is their greatest weapon. “They” also have a much longer time frame than you do. You focus on one man, one “elected” term but they see the greater “Reich” and they grow their base, using whatever they find at hand: “Fuddlementalist” Christianity; a Donald Trump and his disgruntled, ignorant white supremacist base, black-hating policemen, remnants of KKK’s, “free” speech, the Republican party, spreading lies through Internet propaganda, and much more. Those are just their tools. In your article you say that you “fear” Trump would use a curtailment of free speech to his own advantage, hence “we” must not antagonize; push the envelope: it’s the wrong time. OK, so we do that. The hate speeches increase and become more and more vile and the poison does its work, particularly in the minds of the unemployed and hopeless youths. Then there’s an explosion of acts of bigotry and hatred but so much poison has entered into the social consciousness that there is little reaction and what there is is quickly put down. Those who react negatively to the incited violence become the enemies of the State and are arrested on trumped up charges of sedition. An already stacked supreme court finds them guilty. It’s classic take over tactics of the far right. I think those nations who signed the resolution understand this only too well because… THEY REMEMBER. And in typical Forrest Gump style, “That’s all I gotta say about that.” Thanks Jill.

Ah, well … it may be that you’re right, and I won’t live to know one way or the other, but I know that if I believed all you say, I would give up the fight, for … if all that were inevitable, then why bother? And, since I am a fighter, and plan to keep on fighting as long as I breathe, then I have to believe there is a chance you are wrong! But you definitely give some things to think about!

I think we need free speech because the best way to knock a bad idea down is to hear it and provide a convincing argument against it. Arguments that different people with different way can agree that , yes that was a bad idea. Great post and I learned from it. Hugs

Thank you very much, Scottie! And I agree with you, we need to hear all sides, then engage in civil discourse, Otherness, people who feel marginalized hide their thoughts under the rocks, and they come slithering out as some have once Trump started turning over the rocks. Thanks again!

Reblogged this on Words To Captivate ~ by John Fioravanti and commented:
Jill Dennison gifts us with a well researched and carefully framed discussion about limiting freedom of speech in the U.S.A. Please share…

This article is very well done, Jill and demonstrates careful thought. I understand why you need to tread very carefully when considering restrictions to free speech, but I think that one restriction that can be put in place is that of banning speech that encourages illegal acts. Insulting a president or legislator is not inciting an illegal act. Bravo!

I agree … I just wish we didn’t always have to try to anticipate what the buffoon in the White House will do, how he will react, to everything. I wish we had a sane and sensible leader. Someone like … oh, say Barack Obama?

Mmmmm, I have not really dug into the matter of this resolution, but let me throw this in: In Germany and Austria all kind of Nazi symbols are forbidden, as is using the Nazi salute, as is spreading lies about the Holocaust. But I still think we have freedom of speech and freedom of press here.

Yes, and I would love to see them banned here as well, but … this country defends things sometimes that are indefensible, such as the unlimited private ownership of guns. And the right to hate symbols, which goes back, here, to the KKK of the 19th century, which is still every-present in the south. I think Europeans feel more strongly about it because it hit home for them, but in the U.S., Nazism was rather an abstract concept. But yes, I understand and completely agree with you, at least in theory.

Yes …. but what about all the American soldiers that fought against the very symbols that are brandished again these days? Does not sound abstract to me … – But maybe there are not enough of them left, and the new generation does not make that connection.

Your last sentence hits the nail on the head. All things fade with time. Now, my dad and grandad both had stories to tell, and I grew up on the atrocities of the Hitler, the Holocaust, the war, being born just 6 years after the end. Those stories are ingrained forever in my mind, and I have shared them with my family, but when I am gone, it won’t have as much meaning to them, and eventually it will be … “oh yeah, I think there was some ancestor way back when who fought in that war …” It is sad, but it’s the way of the world. It is also, I believe, why we fail to learn the lessons of history and continue making the same mistakes over and over and over.

The attempts to curb free speech come at times when fear is at its height. But there is good reason to prohibit speech that seeks to engender violence — as was the case in many of Trump’s speeches in his race to the presidency. But as a rule we should always err on the side of caution lest we open Pandora’s box and suddenly find ourselves living in a a repressive, Fascist world.

I note my friend Dana’s comment on the repost of yours. As a former journalist he fought his entire career to protect the First Amendment and he insists that a line cannot be drawn: all or nothing. Thus, he would not draw the line even at inciting violence. As he says, once you start drawing lines then people like Jill are silenced because someone doesn’t like what she says. Not a good thing!

Yes, we have been extremely lucky for the past 230 years in that even our less noble leaders were at least men of character and/or conscience. It was inevitable, I suppose, that eventually we would get one who had neither of those traits. Hopefully, we can rid ourselves of him before we lose all we have gained over the past two centuries.

Hear hear to you Jill and to the Wobegone one. I well remember doing an essay on the subject: Democracy contains the seeds of its own destruction, discuss. The answer may be yes, since freedom to speak out and freedom for the misguided or malevolent to follow an evil but charismatic leader is enshrined therein, but the seeds do not need to germinate. If good people stand by and do nothing that is watering those seeds nicely. We are all watching, and I suppose we can perhaps do more. You certainly do your bit, keeping us thinking and informed and writing to democratically elected representatives to hold them to account. I am very worried about one or two things happening in the UK and debating how best to react. Someone today said, for the sake of my own sanity, just ignore it. Well, no. That way hatred grows unchecked and things happen which may prove very difficult to undo. Keep on keeping on, Jill, but make sure you find time to walk and talk with the trees 😉

Exactly, my friend! In the words of Edmund Burke, “The only thing necessary for the triumph of evil is for good men to do nothing.” I always feel that I should be doing more … like perhaps going to the Capitol and stealing all their pens so they cannot write nor sign their abominable bills! I always become angry when someone tells me to ignore it for the sake of my sanity. That was shat the Jews did in Germany in the 1939s. No, what good is my sanity if my conscience drives me insane anyway, as it would if I didn’t at least try. And thank you for caring, Mary … I will remember to chat with the trees from time to time. Hugs!!!

This is a powerful, mature and well reasoned argument Jill which puts people like Spencer and of course that creature taking up space in the Whitehouse to shame.
Limiting free speech is based on the premise that those framing the limiting are all dedicated, mature, non-judgemental individuals of consistently flawless character who by good chance happen to think ‘the way’ ‘you do’.
The most a society can do is to legislate against an intent to spread violence. We have such laws in the UK, but then our constitution is not written and thus we can be a measure more flexible.
These odious hate-mongers are the price we pay for Democracy. They, however rarely live out full and happy lives, Hate does that to do.
Strive on Jill, strive on.

Certainly when a nation has leaders of good character, intelligence and humanitarian values, even though he/she will not be perfect, they will act in what they believe is the best interest of the nation and its people. We in the U.S. are lacking any leadership with those qualities, therefore we must be ever-vigilant and watchful, using our voices to keep shining a light on the cobwebs in the corner, lest they grow out of control. The Constitution has some safeguards, but I can also see how those can be circumvented, as they have been lately, and I can see where a person with too much power could plow right through them. Think Erdogan.

You guys in the UK, and in most other nations in the industrialized western world, have something else that, while it may not seem related, actually is. That something is strict control over who can own firearms. In your country, you do not need to worry that every Tom, Dick and Harry is armed to the teeth. It makes a difference in how we can approach things, and also makes a difference in how a corrupt leader might use those people to his advantage.

But alas, we are still fighting the good fight and I shall, indeed, strive on my dear friend!